FEDERAL COURT OF AUSTRALIA
Lewis v Nortex Pty Limited (in liq) [2012] FCA 621
Citation: Lewis v Nortex Pty Limited (in liq) [2012] FCA 621 Parties: PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (IN LIQUIDATION) and BRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION) File number: NSD 436 of 2012 Judge: BUCHANAN J Date of judgment: 15 June 2012 Catchwords: BANKRUPTCY AND INSOLVENCY – application to set aside a bankruptcy notice –whether orders attached to a bankruptcy notice identified payments to be made on different accounts Legislation: Bankruptcy Act 1966 (Cth)
Bankruptcy Regulations 1966
Corporations Act 2001 (Cth)
Corporations Law
Evidence Act 1995 (Cth)Cases cited: Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (In Liq) (No 5) [2010] NSWCA 294
Lewis v Lamru Pty Ltd; In the matter of Lewis [2011] FCA 758Date of hearing: 7 June 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr J Johnson Solicitor for the Applicant: Toomey Pegg Counsel for the First and Second Respondents: Mr V R W Gray Solicitor for the First and Second Respondents: Somerset Ryckmans
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 436 of 2012
BETWEEN: PETER LAWRENCE LEWIS
ApplicantAND: NORTEX PTY LIMITED (IN LIQUIDATION)
First RespondentBRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION)
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
15 JUNE 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 436 of 2012
IN THE MATTER OF PETER LAWRENCE LEWIS, A DEBTOR
BETWEEN: PETER LAWRENCE LEWIS
ApplicantAND: NORTEX PTY LIMITED (IN LIQUIDATION)
First RespondentBRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION)
Second Respondent
JUDGE:
BUCHANAN J
DATE:
15 JUNE 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These proceedings concern an application to set aside a bankruptcy notice which was served on the applicant on 28 February 2012. The bankruptcy notice named as creditors “NORTEX PTY LIMITED (IN LIQUIDATION) ACN 002 903 362 and BRIAN RAYMOND SILVIA in his capacity as liquidator of Nortex Pty Limited (in liquidation)”.
The bankruptcy notice claimed a debt of $1,938,695.68. The sum claimed was based on a JUDGMENT/ORDER signed and sealed by a Registrar of the Supreme Court of New South Wales on 17 August 2010. The amounts claimed as interest under the orders were calculated as shown in a “Schedule of Interest Calculations”.
At all relevant times the applicant controlled a company called Kation Pty Limited (“Kation”). Mr Russell Lamb controlled a company called Lamru Pty Limited (“Lamru”). From about June 1991 Kation and Lamru held interests in a unit trust known as the Nortex Unit Trust in the proportions of 60% and 40% respectively.…
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- Case
- [2012] FCA 621
- Decision Date
CaseChat Overview and Summary
The court had to determine if the orders attached to the bankruptcy notice were sufficiently precise in identifying the accounts from which payments were to be made. The statutory requirement under section 45D(1) of the Bankruptcy Act 1966 was to ensure that the orders specified the account from which payments were to be made. The court examined whether the notice and the attached orders complied with this requirement, considering whether the vagueness in specifying the accounts rendered the notice invalid.
The court found that the notice and the attached orders were sufficiently specific, noting that while the accounts were not explicitly named, the context and the circumstances allowed for a reasonable interpretation of which accounts were intended. The court held that there was no error in the notice that would render it invalid. Consequently, the application to set aside the bankruptcy notice was dismissed. The court ordered that the application be dismissed with costs, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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